1. The standards of review for summary judgment are stated and applied.

2. The legal principles, presumptions, and burdens of proof relating to delivery of deeds are
stated and applied.

3. To transfer title through a warranty deed, the grantor must cause the deed to be delivered
during the grantor's lifetime.

4. Delivery of a deed may be constructive as well as actual or personal, and it may be made
to a third party to hold for the grantee, where an intention is manifested to give the
conveyance present effect.

5. In deeds of gifts to children or relatives, the reservation by the grantor for the use of the
property during his or her lifetime is evidence of intention to deliver the deed before his or
her death for there could be no purpose in placing such a reservation in the deed if it were
not delivered in his or her lifetime.

6. Whether a grantor has caused a deed to be delivered is normally a question of fact, but
where the facts are not controverted then delivery becomes a question of law.

7. The party challenging presumptions of delivery must supply clear and convincing evidence
to rebut the presumptions.

8. Under the facts of this case, we hold that (1) an unsupported challenge to a witness'
credibility is not sufficient to create a genuine issue of a material fact; (2) the grantor
executed and had her signature acknowledged on the four deeds and manifested the intent
to divest herself of title and vest title in the grantees; (3) delivery of the deeds into the
possession of two of the grantees created the presumption that they were delivered; (4)
the reservation of a life estate by the grantor and her lack of control over the deeds result
in the law presuming that she delivered the deeds during her lifetime; (5) the correct point
of inquiry as to whether delivery occurred is shown by the evidence relating to the 1960s
and facts that occurred long after delivery had been completed are not material facts
sufficient to defeat a summary judgment motion; and (6) the district court correctly
granted summary judgment.

LARSON, J.: This fact-sensitive appeal involves the much litigated question of whether
the execution and delivery of several deeds reserving a life estate constitutes a valid inter vivos
gift or an invalid attempt at a testamentary disposition.

Several of the heirs at law of Margret Johannes, herein appellants, appeal from the grant
of partial summary judgment in favor of the grantees of deeds executed by Margret to Isabel Idol,
Hazel Denison, and Gertrude Reader and their successors in interest, herein appellees.

The district court ruled that the appellants had not identified any dispositive facts sufficient
to controvert the presumption that Margret had made a valid delivery of the deeds to the
appellees and consequently granted partial summary judgment to the grantees of the deeds and
their successors in interest. From this ruling, the appellants have appealed.

This appeal involves only two counts of a complicated and contentious eight count case
wherein the parties resolved difficult legal questions involving the admission of the will of an
Arizona resident and its effect on the title to Kansas real property; the determination of the
heirship of Margret; requests for accounting on nine tracts of land not involved in this appeal; an
action to partition the nine tracts of land not involved in this appeal which were ultimately
partitioned and sold for in excess of $1 million; and the determination of controversies involving
the statute of limitations, assessment of interest, and extremely complicated accountings, some of
which were agreed upon but most of which were resolved by court rulings. None of these
questions are directly applicable to the two issues we face in this appeal but did involve all of the
members of the extended family of John G. and Tilde Johannes and are set forth to explain why
litigation which began on March 6, 2002, is only now drawing to a close with the appeal we face.

This appeal involves the property of Margret, and we set forth the facts in detail to
establish the basis for the arguments of the parties and the rulings of the district court.

Margret was one of nine children of John G. and Tilde Johannes. Margret had four sisters,
Gertrude Reader, Hazel Denison, Isabel Idol, and Tillie Zimmerman. Margret also had four
brothers, Evilin, John H., Juel, and Luther Johannes.

Hazel had one daughter, Janila T. Caldaroni. Isabel had two sons, Kem and Harrison Idol.
Tillie had two daughters, Vanda Beamer and Zella Kimbrell. Juel had one son, Jerry, and two
daughters, Judy Randolph and Arlene Forwand. Luther had one son, Shon, and one daughter,
Carol Jones. Luther was also survived by his wife, Freda. Hazel died during the course of
litigation, and Harrison was named as the administrator of her estate and substituted as a party.
Evilin died during the course of litigation and Kem, Harrison, and Donald Yaussi were named as
coexecutors of his estate and substituted as a party.

Margret died unmarried, without children, and intestate on August 17, 1989. Appellants
believed she died as owner in fee simple absolute of four parcels of land.

Some 22 years before her death, on May 22, 1967, attorney John F. Gernon sent a letter
to Margret that provided instructions to Margret on how to transfer four pieces of property to her
sisters by using the warranty deeds enclosed with the letter. It appears from the deeds that
Margret signed them sometime in 1967.

All four warranty deeds included the following language: "Reserving unto party of the first
part [Margret] and her assigns the full benefit, use, rents, issues and profits from the above
described real estate, for and during her natural life." Margret deeded the property as follows:

"To Isabel and Hazel, 'The North 80' of the West 23' of Lot 41 and North 80' of
Lots 43
and 45 on Cherokee Avenue, in Knapp, Moon and Davis Second Addition to the City of
Hiawatha. Including all personal property located in the house on the above described real estate.'

"To Isabel: 'The Southeast Quarter of the South West [sic] Quarter
and Southwest
Quarter of the Southeast Quarter, of Section 3, Township 1, Range 18; and The East Half of the
Northeast Quarter of Section 32, Township 3, Range 17, all in Brown County, Kansas.'"

Margret signed the deeds and had them notarized. However, the acknowledgment and the
notary's signature do not include the day or month that the deeds were acknowledged. According
to both Hazel and Isabel, Margret delivered the deeds to them in 1967 or 1968. Isabel placed the
deeds in a safety deposit box she owned with Hazel. Margret's name was not on this safety
deposit box.

After being diagnosed with a terminal illness, Hazel removed the deeds from the safety
deposit box and gave them to Isabel who placed them in a plastic box in her residence. Isabel
forgot or misplaced their location until a search of her residence by her sons located the deeds in
the yellow plastic box.

During Margret's life estate, she executed three right-of-way easements. The
remaindermen did not join in any of these easements. After Margret's death, Isabel and Hazel
began managing Margret's former property and received all of the income therefrom. This
continued from 1989 through the beginning of 2002, a period in excess of 12 years.

On February 2, 2002, the extended Johannes family had a meeting to discuss selling the
farmland they had operated as a family partnership for approximately 50 years. At Evilin's request,
attorney Gernon prepared a letter that provided an opinion on who owned Margret's land. In the
letter, Gernon concluded that Margret owned the disputed land at her death because no deeds had
been recorded and no will had been offered for probate. Thus, Gernon concluded that the land
passed to Margret's heirs at law. Shon and Jerry reviewed the contents of the letter at the family
meeting. Based on the contents of the letter, Jerry accused Isabel and Hazel of misappropriating
the family's share of the profits from Margret's land. Isabel responded by stating that she had
"papers" showing that she and Hazel owned the property. After the meeting, Kem and Harrison
found the deeds at Isabel's house and recorded them.

Unable to resolve the ownership issues regarding the disputed four tracts as well as other
matters unrelated to this appeal, Jerry, Shon, Arlene, Vanda, Carol Ann, Freda, and Judy sued
Isabel, Hazel, Janila, and the successors in interest of Margret and Gertrude. In count I, appellants
sued to determine the heirs of Margret. In count V, appellants sued for an accounting and
recovery of profits from the four disputed parcels of land. In count VI, appellants requested the
court set aside the four deeds recorded on February 6, 2002, for lack of a valid delivery.

After discovery, appellees moved for partial summary judgment on counts V and VI,
asserting that no facts existed to controvert a finding that Margret delivered the deeds in 1967 or
1968 to Isabel and Hazel. Appellants opposed summary judgment by raising arguments similar to
those they raise on appeal.

In ruling on the motion for partial summary judgment, the district court found that the
material uncontroverted facts were substantially as have been set forth previously in this opinion.
The district court's decision set forth the controlling legal authority in the following manner:

"1. Summary judgment is appropriate when the pleadings, depositions, answers to
interrogatories, and submissions on file, together with the affidavits, show that there is no
genuine issue as to any material fact and that the moving party is entitled to judgment as a matter
of law. The trial court is required to resolve all facts and inferences which may be reasonably be
drawn from the evidence in favor of the party against whom the ruling is sought. When opposing
a motion for summary judgment, an adverse party must come forward with evidence to establish
a dispute as to material fact. In order to preclude summary judgment, the facts subject to the
dispute must be material to the conclusive issues in the case. Saliba v. Union Pacific
Railroad
Company, 264 Kan. 128, 955 P.2d 1189 (1998).

"2. A non-moving party in a motion for summary judgment may not use mere
allegations to dispute material facts, but instead must support its position by affirmative evidence.
Lloyd v. Quorum Health Resources, 31 Kan. App. 2d 943, 77 P.3d 993 (2003).

"3. In determining a motion for summary judgment, a court must give to the party
against whom summary judgment is sought the benefit of all inferences that may be drawn from
the facts under consideration. A popular formula is that summary judgment shall be granted on
the same kind of showing that would permit direction of a verdict were the case to be tried. If
there is any question as to the credibility of witnesses or the weight of the evidence, summary
judgment must be denied. TIMI v. Prescott State Bank, 220 Kan. 377, 553 P.2d 315
(1976).

"4. When one who has executed a deed retains it in his possession with the
intention
that it shall become operative on the grantor's death, no conveyance is effected and the grantor
dies in full ownership of the property. Young v. M. Williams, 75 Kan. 243, 89 Pac.
12 (1907).

"5. Actual or formal delivery of a deed is unnecessary. A deed may be good by
constructive delivery as well as by actual delivery. Any words or acts showing an intention on the
part of the grantor that the deed be considered as completely executed and the title conveyed is
sufficient. Tucker v. Allen, 16 Kan. 312 (1876).

"6. In order for a deed to operate as a valid transfer of title, it must be delivered
during
the life of the grantor. Delivery is largely a matter of the grantor's intention to divest himself of
title, as shown by all of the surrounding facts and circumstances. Whether there was a delivery is
ordinarily a question of fact. Agrelius v. Mohesky, 208 Kan. 790, 494 P.2d 1095
(1972).

"7. The question of delivery of a deed is largely a question of intention, ordinarily
to be
determined by the jury or trial court as a question of fact. When the facts are not controverted, the
question should be determined by the Court as a question of law. Hoard v. Jones, 119
Kan. 138,
23 Pac. 888 (1925).

"8. Once there is a valid delivery, either to a grantee or to a third party, with an
intention to effect a present conveyance, it makes no difference if the grantor re-acquires the
deed, because title vested at the time of the delivery. The grantor is powerless to defeat this
vesting of title. Hutton v. Hutton, 184 Kan. 560, 337 P.2d 635 (1959).

"9. In a deed conveying gifts to children or relatives, the reservation by the grantor
of
the property during his lifetime is evidence of intention to deliver the instrument before his death,
for there could be no purpose in placing such a reservation in the deed if it were not delivered in
his lifetime. Libel v. Corcoran, 203 Kan. 181, 452 P.2d 832 (1969)."

The district court's analysis largely restated the uncontroverted facts and the legal
authority set forth above. The court then noted there was no evidence controverting the facts that
Margret gave Isabel and Hazel the deeds on a date in the late 1960s and they placed the deeds in a
safety deposit box in their names. The court then recounted the fact that Hazel removed the deeds
from the bank box and gave them to Isabel who placed them in a yellow plastic box at her
residence and forgot or misplaced them. The deeds were found in the box by Harrison and Kem,
and they caused them to be recorded with the Brown County Register of Deeds on February 6,
2002.

The district court's decision then recognized the arguments made by the plaintiffs
(appellants herein) that circumstances such as not filing the deeds, not changing ownership with
the register of deeds and county treasurer, and other actions of Hazel and Isabel initially appeared
to show there was no delivery of the deeds. The district court's memorandum decision then stated
(utilizing the initials MJ for Margret, HD for Hazel, and II for Isabel):

"The correct point of inquiry in this motion is whether a delivery occurred with the intent
to
divest the title of grantor and to transfer it to grantees as shown by the evidence in the late
1960's. The evidence is uncontroverted that MJ asked her attorney to prepare the deeds at her
request. The attorney advised her to deliver the deeds and recommended other estate planning
strategies. The evidence also establishes that as a matter of law, that MJ delivered the deeds to
HD and II who placed the deeds in their safety deposit box. There is no evidence in the record
that establishes that MJ had access to the bank box. There is no evidence that indicates the deeds
were redelivered to her. Even if she had a key to the safety deposit box, there is no evidence that
her name was on the box as a joint tenant or a signatory on the signature card to allow access.
The record contains no evidence showing any access to this safety deposit box by MJ. If Plaintiffs
desire to establish this fact, it is their burden to support this contention with some evidence.
Lloyd v. Quorum Health Resources, 31 Kan. App. 2d 943, 77 P.3d 998 (2003)."

The district court further held that the execution of the easements did not "affect, destroy
or diminish the previous delivery of the deeds to her sisters." In referring to the reserved life estate
in Margret, the court stated there would be no reason to reserve a life estate unless she intended
to give the property to her sisters while she enjoyed the use and benefit of the assets during her
lifetime. The court relied on Libel v. Corcoran, 203 Kan. 181, 452 P.2d 832 (1969), a
case where
a life estate had been reserved, and held in this case that uncontroverted material facts showed
actual delivery with intent to transfer title, with the character of the deeds bolstering the fact of
delivery, and with Margret continuing to exercise the benefits of a life tenant in regards to the
property.

The district court then disposed of any argument as to the delivery of the deed to Hazel
and Isabel where Gertrude Reader was the grantee. The court stated Gertrude's knowledge of the
deed made no difference as the delivery was valid and transferred title. The court held it was the
delivery by Margret of the deed to a third party during the grantor's lifetime that controls, relying
on Reedv. Kathley, 187 Kan. 273, 356 P.2d 1004 (1960).

The court finally held that "[o]n the issue of delivery, there are no controverted material
facts. The Court finds as a matter of law, that delivery occurred and the title vested in the grantees
at the time of delivery subject to the life estate reserved by MJ." Summary judgment was granted,
holding the deeds were validly delivered. This judgment was rendered March 7, 2005, but was not
a final judgment until all the other controverted issues in the case were resolved. When all other
judgments became final, a timely appeal was filed relating only to the delivery of the deeds issue
and the companion accounting claim. If it is finally determined that delivery was not
accomplished, then the grantees will be required to account for the income from the properties
which they have received and retained.

The primary issue for our consideration on appeal is whether the district court erred in
granting the appellees' motion for partial summary judgment.

The standards of review of summary judgment motions and the legal principles,
presumptions, and burdens of proof relating to delivery of deeds will first be set forth.

"'"'Summary judgment is appropriate when the pleadings, depositions, answers to
interrogatories, and admissions on file, together with the affidavits, show that there is no genuine
issue as to any material fact and that the moving party is entitled to judgment as a matter of law.
The trial court is required to resolve all facts and inferences which may reasonably be drawn
from the evidence in favor of the party against whom the ruling is sought. When opposing a
motion for summary judgment, an adverse party must come forward with evidence to establish a
dispute as to a material fact. In order to preclude summary judgment, the facts subject to
the
dispute must be material to the conclusive issues in the case. On appeal, we apply the same rules
and where we find reasonable minds could differ as to the conclusions drawn from the evidence,
summary judgment must be denied.'"' [Citations omitted.]" (Emphasis added.) Korytkowski
v.
City of Ottawa, 283 Kan. 122, 128, 152 P.3d 53 (2007).

"'"An issue of fact is not genuine unless it has legal controlling force as to the
controlling issue. The disputed question of fact which is immaterial to the issue does not preclude
summary judgment. If the disputed fact, however resolved, could not affect the judgment, it does
not present a genuine issue of material fact."' [Citations omitted.]" Muhl v. Bohi, 37
Kan. App.
2d 225, 229, 152 P.3d 93 (2007).

Finally, "'a court should be cautious in granting a motion for summary judgment when
resolution of the dispositive issue necessitates a determination of the state of mind of one or both
of the parties.' [Citation omitted.]" Brennan v. Kunzle, 37 Kan. App. 2d 365, 378,
154 P.3d 1094
(2007).

The transfer of real property in Kansas is governed by K.S.A. 58-2201 et seq.
Title to real
property must be conveyed in writing. K.S.A. 33-106. The writing usually takes the form of a
deed. See K.S.A. 58-2203; K.S.A. 58-2204.

The numerous statements of controlling legal authority utilized by the district court
correctly set forth the unrefuted legal principles which govern where the issue to be determined is
whether a deed was validly delivered. To supplement those principles, we further note that to
transfer title through a warranty deed, the grantor must cause the deed to be delivered to the
grantee during the grantor's lifetime. Agrelius v. Mohesky, 208 Kan. 790, 795, 494
P.2d 1095
(1972).

We are further taught by Justice Fontron's opinion in Agrelius that "[d]elivery
may be
constructive as well as actual or personal, and it may be made to a third party to hold for the
grantee, where an intention is manifested to give the conveyance a present effect. (Reed v.
Keatley, 187 Kan. 273, 356 P.2d 1004)." 208 Kan. at 795. Whether the grantor delivered
the
deed to the grantee is a question of intent and occurs where it is evidence from all the facts and
circumstances surrounding the transaction that the grantor had a present intent to divest himself
or herself of title to the property and vest it in the grantee. Libel, 203 Kan. at 185-86.
Because
delivery is a question of intent, it is normally a question of fact. However, when the facts are not
controverted, then delivery is a question of law. Hoard v. Jones, 119 Kan. 138, 158,
23 Pac. 888
(1925).

The Hoard decision sets forth the important consideration in cases where a
life estate is
reserved, such as we face in our case, when it stated:

"The rule of law is that in deed of gifts to children or relatives, the reservation by the
grantor of
the use of the property during his lifetime is evidence of an intention to deliver the instrument
before his death, for there could be no purpose in placing such a reservation in the deed if it were
not delivered in his lifetime. [Citations omitted.]" 119 Kan. at 156.

When a deed that is duly executed and acknowledged is found in the grantee's possession,
in a third-party's possession, or when the deed has been recorded, it is presumed that the grantor
delivered the deed. Cole, Administrator v. Hoefflin, 187 Kan. 66, 69, 354 P.2d 362
(1960); Staats
v. Staats, 148 Kan. 808, Syl. ¶ 3, 84 P.2d 842 (1938); Hoard, 119 Kan.
at 158. Conversely, when
a deed is signed and acknowledged but found in the grantor's possession, the law presumes that
the grantor did not deliver the deed. See Cole, 187 Kan. at 69, 72-73 (Price, J.,
dissenting); Stump
v. Smarsh, 153 Kan. 804, 808, 113 P.2d 1058 (1941).

The party challenging the preceding presumptions must supply clear and convincing
evidence to rebut the presumption. Hoard, 119 Kan. at 157-58.

The appellants raise substantially the same arguments to us on appeal that were presented
to the district court. Our consideration on appeal is limited to the documents that were submitted
to and considered by the district court in making its ruling below.

A principle argument that appellants make is that the record below was insufficient to
establish delivery as a matter of law because Hazel's and Isabel's credibility was not tested by
cross-examination in front of a factfinder and, therefore, summary judgment was inappropriate.

The record is clear that Hazel stated that Margret delivered the deeds to her some time in
1967 or 1968. The appellants did not controvert this statement and in their brief stated: "[S]uch
statements are not controverted in Plaintiffs' evidence and the probative value thereof must be
determined by the Court." This statement which was also the response to the motion for partial
summary judgment can only be construed to be an admission that appellants have no evidence to
dispute the material facts concerning delivery except to argue that Hazel, who is now deceased,
was untruthful under oath in her testimony as to the delivery of the deed to her, the placement of
the deeds in a safety deposit box under her and Isabel's control, and the removal of the deeds from
the box and delivery to Isabel.

The district court correctly focused its determination on the critical issue when it stated in
its memorandum decision that "the correct point of inquiry in this motion is whether a delivery
occurred with the intent to divest the title of grantor and to transfer it to grantees as shown by the
evidence in the late 1960's."

There is nothing in the record to show that Hazel's testimony was untrustworthy, nor is
there any showing that delivery did not occur as Isabel and Hazel have stated. The appellants have
presented no evidence to controvert these facts.

We are clearly taught by Estate of Pemberton, 35 Kan. App. 2d at 835-36,
and the cases
cited therein, that "an unsupported challenge to a witness' credibility is not sufficient to create a
genuine issue of a material fact. [Citations omitted.]" As we have said, the failure of appellants to
provide affirmative evidence, contrary testimony, or a writing that challenges Hazel's or Isabel's
statements concerning actual delivery of the deeds to them clearly justifies the district court's
ruling granting partial summary judgment that valid delivery of the deeds occurred.

In this case, Margret executed and had her signatures acknowledged on the four deeds.
She clearly manifested the intent to divest herself of title and vest it in Isabel, Hazel, and Gertrude.
See Reed, 187 Kan. at 277. The deeds were in Hazel's and Isabel's possession which
creates the
presumption that they were delivered. See Hoard, 119 Kan. at 158. The reservation
of a life
estate by Margret and the lack of her control results in the law presuming that she delivered the
deed during her lifetime. See Cole, 187 Kan. at 69. Finally, possession in Isabel and
Hazel
constitutes constructive delivery sufficient to transfer title to Gertrude even though Gertrude
never received physical possession of the deed in which she was the grantee. See
Reed, 187 Kan.
at 277.

We have considered appellants' arguments concerning the probative value of
uncontradicted evidence and credibility of witnesses, and the cases cited therewith, and find no
applicability of these arguments to the clear and undisputed facts showing delivery in the late
1960's and appellants' failure to controvert such facts.

We have also considered the appellants' other arguments which we do not find to change
our previously stated conclusions.

Any arguments that the deeds were incomplete because they did not show the month or
day when they were acknowledged and they were not recorded when delivered is not supported.
Recording is not necessary to effectively deliver a deed; delivery depends on the grantor's intent
which here shows delivery was accomplished. Libel, 203 Kan. at 185. No authority
has been
provided as to why the deeds were not validly acknowledged, and such failure effectively waives
such an argument. See Lee Builder, Inc. v. Farm Bureau Mut. Ins. Co., 281 Kan.
844, 859, 137
P.3d 486 (2006).

Appellants suggest it was improper to utilize a sworn statement from Hazel rather than a
deposition and that they were not permitted to cross-depose her. Appellants' arguments amount to
accusations and speculations and are insufficient to show any positive evidence that creates a
genuine issue of material fact necessary to defeat a motion for summary judgment. K.S.A.
60-256(c); Seitz v. Lawrence Bank, 36 Kan. App. 2d 283, Syl. ¶ 8, 138 P.3d
388 (2006).

Appellants also claim it was erroneous for the district court to find that Hazel removed the
deeds from the safety deposit box she shared with Isabel and gave the deeds to Isabel because
those facts do not appear in Hazel's sworn statement. This may or may not be an error; but if it is,
it has no relation to a material fact as it occurred long after delivery of the deeds had been
completed–in fact, probably after Margret's death. Facts that have no bearing on a material
fact
are insufficient to defeat a summary judgment motion. Muhl, 37 Kan. App. 2d at 229.

Appellants argued that Hazel was not aware of what was deeded to her because she
executed a quitclaim deed to her daughter Janila that included part of the disputed property she
does not have any interest in. There is no nexus between an erroneous legal description in a 2002
deed and the clear delivery of the four deeds in the late 1960's. This argument has no merit.

Likewise, the claim that several parties saw Margret's 1974 will in attorney Gernon's office
by which she attempted to devise land to her brother John that she had already given to her sisters
does not require the district court to be reversed. As the district court noted, such a will has never
been admitted, a copy is not in the record, and there is no evidence that it was signed or unsigned.
Our holdings are clear that any factual assertion without an evidentiary basis in the record are
deemed to be unsupported. Supreme Court Rule 6.02(d) (2007 Kan. Ct. R. Annot. 37). This
assertion is not sufficient to be considered affirmative evidence to defeat a valid claim for
summary judgment.

The claim that Margret's execution of three easements in the 1980s suggests she believed
she had title to the land and never intended to deliver title to her sisters is not persuasive. Margret
was the owner of record and the proper person to execute such documents, as was pointed out by
the district court. Further, the easements do not shed any light on Margret's 1967 intent and are
insufficient to controvert the material fact of delivery.

Finally, appellants theorize that Margret followed the advice of her attorney and did not
deliver the deeds, that Isabel and Hazel only obtained possession of the deeds after Margret's
death, and that no valid delivery existed. This is nothing more than bold speculation, and the
appellants have provided no factual basis for their creative imagination despite their obligation to
do so to defeat summary judgment. See Seitz, 36 Kan. App. 2d 283, Syl. ¶ 8.

With summary judgment properly granted based on the delivery of all four deeds, there is
no basis for consideration of the claim for an accounting of the income from the four tracts of real
property. That request was properly denied as no legal basis exists for appellants to be entitled to
an accounting of profits from the deeded real properties.

After considering all of the arguments of the appellants, we affirm the district court.